State v. Church ( 2015 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    BRET MICHAEL CHURCH, Appellant.
    No. 1 CA-CR 14-0458
    FILED 7-7-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2013-427084-001
    The Honorable Pamela S. Gates, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Charles R. Krull
    Counsel for Appellant
    STATE v. CHURCH
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maurice Portley delivered the decision of the Court, in which
    Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
    P O R T L E Y, Judge:
    ¶1             This is an appeal under Anders v. California, 
    386 U.S. 738
     (1967)
    and State v. Leon, 
    104 Ariz. 297
    , 
    451 P.2d 878
     (1969). Counsel for Defendant
    Bret Michael Church (“Church”) has advised us that, after searching the
    entire record, he has been unable to discover any arguable questions of law,
    and has filed a brief requesting us to conduct an Anders review of the record.
    Church did not take the opportunity he was given to file a supplemental
    brief.
    FACTS1
    ¶2             Tempe Police Officer Ramos stopped a white van because it
    did not have a license plate light sometime after ten o’clock p.m. on
    December 26, 2012, and requested assistance from another officer. Officer
    Brooks arrived and saw that Officer Ramos was questioning Bart Church,
    the driver, outside of the van, while his brother, Bret Church sat in the
    passenger seat. Both officers noticed that Bart had a large knife in a sheath
    on his belt, and Officer Ramos took it while questioning Bart.
    ¶3            Officer Brooks then went to talk with Church. As he
    approached using his flashlight, he could see construction tools inside and
    noticed that Church began to fidget and move his hands under the seat.
    Officer Brooks asked Church to step out of the van and then frisked him for
    weapons. When patting down Church, Officer Brooks felt a glass pipe in
    his left pocket. When asked by the officer, Church said, “yes, that’s a meth
    pipe.” Officer Brooks then arrested him and retrieved the glass pipe. In his
    search incident to arrest, Officer Brooks found a small plastic bag
    containing methamphetamine.
    1We view the facts “in the light most favorable to sustaining the verdict,
    and resolve all reasonable inferences against the defendant.” State v.
    Rienhardt, 
    190 Ariz. 579
    , 588-89, 
    951 P.2d 454
    , 463-64 (1997).
    2
    STATE v. CHURCH
    Decision of the Court
    ¶4            Church was charged with possession or use of dangerous
    drugs, a class 4 felony, and possession of drug paraphernalia, a class 6
    felony. Before trial, Church moved to suppress evidence arguing that
    Officer Brooks violated his Fourth Amendment rights because the officer
    lacked a valid reason to conduct a Terry2 frisk and did not have probable
    cause to reach into his pocket.
    ¶5             During the evidentiary hearing on Church’s motion, in
    addition to his other testimony, Officer Brooks stated he thought it was
    suspicious that the two brothers, two white men, were in a primarily
    Hispanic neighborhood.          The court then asked for and received
    supplemental briefs from both parties about the impact of Officer Brooks’
    racial statements. Judge Daniel Kiley subsequently denied Church’s
    motion to suppress, finding that while a defendant’s race is not a valid
    factor for a Terry frisk, the remaining factors, under an objective standard,
    justified Officer Brooks’ limited frisk of Church. Judge Kiley also found
    that Officer Brooks had probable cause to remove the glass pipe from
    Church’s pocket.
    ¶6            The case proceeded to trial and the jury found Church guilty
    on both counts. At the sentencing hearing, the court found that he had four
    prior historical felony convictions. Church was sentenced to the minimum
    term in prison of six years for possession of methamphetamine, with a
    concurrent two and one-quarter years in prison for possession of drug
    paraphernalia. He was also given credit for thirty days of presentence
    incarceration.
    ¶7            We have jurisdiction over this appeal pursuant to Article 6,
    Section 9, of the Arizona Constitution, and Arizona Revised Statutes
    sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).3
    DISCUSSION
    ¶8            We have read and considered counsel’s brief and have
    searched the entire record for reversible error. We have found no reversible
    error. See Leon, 
    104 Ariz. at 300
    , 
    451 P.2d at 881
    . All of the proceedings were
    conducted in compliance with the Arizona Rules of Criminal Procedure.
    The record, as presented, reveals that Church was represented by counsel
    2Terry v. Ohio, 
    392 U.S. 1
     (1968).
    3We cite the current version of the applicable statutes absent changes
    material to this decision.
    3
    STATE v. CHURCH
    Decision of the Court
    at all stages of the proceedings. The State offered him a plea agreement and
    there were a number of settlement conferences before trial. The trial court
    ruled on the pretrial motions. The jury heard the evidence, was properly
    instructed, determined the facts from the testimony and evidence
    presented, and determined that the State had proved each element of each
    offense beyond a reasonable doubt. Moreover, the sentences imposed were
    within the statutory limits.
    ¶9             After this decision is filed, counsel’s obligation to represent
    Church in this appeal has ended. Counsel must only inform Church of the
    status of the appeal and his future options, unless counsel identifies an issue
    appropriate for submission to the Arizona Supreme Court by petition for
    review. State v. Shattuck, 
    140 Ariz. 582
    , 584-85, 
    684 P.2d 154
    , 156-57 (1984).
    Church may, if desired, file a motion for reconsideration or petition for
    review pursuant to the Arizona Rules of Criminal Procedure.
    CONCLUSION
    ¶10           Accordingly, we affirm Church’s convictions and sentences.
    :ama
    4